Wednesday, May 19, 2010

More scholarship on history, law, and sexuality

Much exciting work seems to be coming from scholars at the intersection of legal history and the history of sexuality. Margot Canaday's The Straight Statecontinues to garner awards and generate buzz. Last week, we spotlighted Timothy Stewart-Winter and Simon Stern's article on same-sex marriage in the antebellum U.S. Meanwhile, I've seen a number of other interesting reviews and articles around the web. Here's a sampling --

In the May 2010 issue of the Journal of the History of Sexuality, William D. Araiza (Brooklyn Law School) reviewsfour recently published books on same-sex marriage. Here are the first two paragraphs:

The last five years have witnessed dizzying turns in the ongoing controversy over same-sex marriage in the United States. After judicial victories nullified by popular referenda in Hawaii and Alaska in the late 1990s, a more permanent partial victory via judicially mandated civil unions in Vermont gave way to a complete victory for marriage-rights forces in Massachusetts. These victories as well as the local activism in San Francisco and other cities were soured by the near-complete success of the anti-same-sex-marriage referenda approved by voters across the United States in the November 2004 elections. Other turns were to come: court decisions and legislative and referendum votes in California, Connecticut, Iowa, and Vermont. The resolutions in these states, both pro– and anti–marriage rights, will no doubt send both sides into courtrooms, legislative halls, and referendum ballots in the next set of states.

The complexity of this debate is reflected in the four books reviewed here. To repeat a now-familiar pun, they examine gay rights and gay rites (as in marriage) through the prism of politics and culture, transnational comparisons, and, perhaps most interestingly, Christian and Jewish theology. The diversity of approaches through which marriage can be understood nearly guarantees that controversies over marriage rights will remain in some form as live issues in American life for the foreseeable future. The continued centrality of marriage to discussions of gay rights makes recent writing on the topic all the more important.

This article first examines why sodomy has not been analyzed as sexual violence—that is, why sodomy prosecutions have not been part of the history of rape and how gay history has analyzed sodomy cases. It then traces the history of sodomy as part of the history of sexual violence to establish that the use of sodomy to punish sexual violence has long roots in American history, stronger roots than those that exist for the more recent use of the law to prosecute consensual acts. It is not only the nature of acts prosecuted as sodomy that gave the law that character but also the parallel between those acts and their treatment in the law and that of sexual assaults on women and girls. That parallel has significance also for understanding sexual violence generally, requiring a new, broader framework that recasts gender as only one of the identities and hierarchies created by coercion.

Robertson is also the author of a fascinating 2005 article on the problems and possibilities of legal sources for historians of sexuality.

In the mid-1960s, a group of Democratic politicians and welfare policy advocates used a major expansion of the welfare state in California to widen the reach of the party's electoral coalition and to set the stage for the identity politics of the 1970s and beyond. The coming to power of a liberal Democratic administration in California in 1958 heralded a period of social policy experimentation that, in conjunction with the increasing power of a left-liberal movement within the party, provided welfare experts and politicians with the political language through which they would later expand the boundaries of what constituted normative social behavior in areas such as sexuality and individual freedoms. This article explores how liberal politicians like Phil Burton of San Francisco joined with welfare rights lobbyists and bureaucrats to embrace late twentieth-century notions of sexual and gender equality though a broader reconception of economic equality brought about by the expansion of the California welfare state in the early 1960s. These politicians leapt into a local political milieu dominated by individual personalities and cliques in which there was space for a new generation of political entrepreneurs who used appeals to the socially marginalized to help them challenge existing power structures. At the same time, homophile activists were seeking to tie their sexual equality agenda to mainstream political debates over economic and social citizenship. A study of how mainstream liberal politics and the sexual equality movement interacted in San Francisco in a period of rapid social and political change sheds light on the processes through which mainstream politics adapted to changing conceptions of society, including attitudes toward welfare and the "deserving" poor, sexuality, individual rights, and the regulation of capitalism, often before the generally accepted shift in social attitudes in the later 1960s.

For scholars of the colonial and early national United States, it is difficult if not impossible to retell the story of social egalitarianism and political liberty without recounting the social, political, and legal codes governing the practice of miscegenation. Under both the colonial British regime and the post-Revolutionary political order of the United States, these laws and customs operated hand in hand with the equally determinate laws of slavery and citizenship, helping to decide who was a democratic subject and who was not.

In seventeenth- and eighteenth-century Virginia, prohibitions against mixed-race marriages and extramarital unions along with their mixed-race offspring helped to create a new, putatively classless caste system, which equated the dignity of free labor and property holding with a pure British ancestry and the indignity of coercive labor with an African ancestry. In doing so, these laws paved the way for a historic argument for civic equality that rendered the American colonist the genetic bearer of English liberty. In the new American republic, miscegenation laws functioned even more transparently as citizenship decrees, stipulating the whiteness of politically enfranchised subjects and, often capriciously, the blackness of the enslaved or disenfranchised. The logical outcome of these laws, the "one drop of blood" provision, was a testament to the determination of the privileged caste to maintain an artificially scarce supply of citizens by keeping their legal, economic, and political assets from their mixed-race descendants.